Q: What is a preliminary examination?
A: Preliminary examination is part of the mandate of Office of the Prosecutor (OTP) under the Rome Statute, which created the International Criminal Court (ICC). It is at this stage where the OTP determines whether there is a reasonable basis to conduct an investigation into a situation.
Q: Is a preliminary examination different from an investigation?
A: A preliminary examination is not an investigation. It is merely an initial step to determine whether an investigation is necessary. It is not directed on any particular individual, nor is it intended to be a sanction against the State being subject of the examination.
Q: What is the basis for the OTP to initiate a preliminary examination, in general?
A: The preliminary examination of a situation by the OTP may, in general, be initiated on the basis of: (a) information sent by individuals or groups, States, intergovernmental or non-governmental organizations; (b) a referral from a State Party or the U.N. Security Council; or (c) a declaration by the concerned State accepting the exercise of jurisdiction by the Court pursuant to Article 12(3).
Q: What is the threshold for the OTP in deciding whether to open a preliminary examination?
A: The OTP will open a preliminary examination when “it appears” from the communications it has received and other information it has gathered that an act falls within the ICC’s jurisdiction. The threshold, therefore, for its decision to open a preliminary examination is very low and is not based on a thorough examination of the facts and of all sides, which is precisely why it initiates a preliminary examination.
Q: What was the basis for opening a preliminary examination on a situation in the Philippines?
A: Certain individuals in the Philippines sent communications to the Court in 2017. Other individuals or groups of certain motivations may have also sent communications to the OTP. These and open-source information were the basis of the OTP’s decision to open a preliminary examination.
Q: What is the preliminary examination in the Philippines all about?
A: It is about the alleged extra-judicial killings that are being unfairly and misleadingly associated to the campaign against illegal drugs. It is being claimed that these killings constitute crimes against humanity, which are defined under the Rome Statute and within the jurisdiction of the ICC.
Q: Did the OTP get the side of the Philippine Government before opening a preliminary examination?
A: The OTP did not request any information from the Philippine Government. It will be in the course of the preliminary examination that the OTP will request information from the Philippine Government. The Philippine Government can also, on its own accord, furnish information to the OTP at any time during the preliminary examination.
Q: What are the crimes within the jurisdiction of the International Criminal Court (ICC)?
A: The ICC has jurisdiction over genocide, crimes against humanity, war crimes, and the crime of aggression. These crimes are considered the most serious crimes of international concern.
Q: What crimes are being alleged to have been committed in the Philippines in the context of the campaign against illegal drugs?
A: According to the communications sent to the OTP, crimes against humanity were allegedly committed.
Q: What are crimes against humanity?
A: “Crimes against humanity” are defined in Article 7 of the Rome Statute, as acts enumerated, such as murder, which are committed as part of a widespread or systematic attack directed against any civilian population with knowledge of the attack, pursuant to or in furtherance of a State or organizational policy to commit such attack.
Q: What are the statutory criteria for determining whether there is a need to conduct an investigation?
A: Under Article 53 (1)(a) to (c) of the Rome Statute, the statutory criteria for determining the reasonable basis to proceed to an investigation are: (1) jurisdiction; (2) admissibility; and (3) interests of justice.
Q: What does the “jurisdiction” criteria mean?
A: There are three kinds of jurisdiction that need to be established: (1) temporal jurisdiction; (2) subject-matter jurisdiction; and (3) territorial or personal jurisdiction.
- Temporal jurisdiction means that the alleged crime must have been committed after the entry into force of the Rome Statute for a State Party. For the Philippines, the Rome Statute entered into force on 1 November 2011. Acts which took place before this date are beyond the scope of the jurisdiction of the ICC.
- Subject-matter jurisdiction means that the crime committed is a crime defined under the Rome Statute. All the elements of the crime should be present.
- Territorial or personal jurisdiction means that the crime must be committed in the territory, or by a national, of a State Party.
Q: Will the OTP be able to establish ICC’s jurisdiction?
A: We are confident that the OTP will very soon realize that the deaths being associated to the government’s campaign against illegal drugs are not part of a widespread or systematic attack against civilian population. Legitimate police operations are part of the sovereign right and duty of the State to protect its people. It is not a crime to enforce laws and protect the people. There is no State policy to kill innocent civilians. It is also prohibited by the Philippine Constitution and existing laws. On this basis alone, the OTP should find that there is no reasonable basis to proceed with an investigation.
Q: What does the “admissibility” criteria mean?
A: There are two aspects of the “admissibility” criteria: (1) complementarity and (2) gravity.
- Complementarity involves an examination of the existence of genuine national proceedings in relation to the potential cases being considered for investigation.
- Gravity involves an assessment of the scale, nature and manner of commission of their crimes, and their impact.
Q: Will the situation in the Philippines pass the “admissibility” criteria?
A: We are confident that it would not pass the admissibility criteria.
Q: What does the “complementarity principle” mean?
A: The International Criminal Court is a court of last resort. The States Parties to the Rome Statute envisioned a court with complementary, not primary jurisdiction. It is the States Parties that have the primary jurisdiction to investigate and prosecute crimes punishable under the Rome Statute. The ICC can only come in if it can be shown that there are no genuine national proceedings on the alleged incidents, i.e., investigation or prosecution of the alleged crimes committed. The ICC should complement, and not supplant the primary jurisdiction of States Parties.
Q: What does the “complementarity principle” mean for the Philippines?
A: This means that the Philippines has the primary jurisdiction to investigate and prosecute crime against humanity allegedly being committed in the context of the campaign against illegal drugs. The Philippines has a law, particularly Republic Act No. 9851, that punishes criminal conduct covered by the Rome Statute, including crimes against humanity. Any person can seek redress in Philippine courts for alleged crimes committed, especially that the country has a fully functioning judicial system.
Therefore, the OTP cannot proceed with an investigation unless it can be shown that there are no genuine efforts in the Philippines towards investigating and prosecuting those who are responsible for the alleged crimes against humanity. Whether committed by criminal organizations or by erring State forces, the deaths associated to the campaign against illegal drugs are undergoing investigation and prosecution by the Philippine Government. Thus, on the basis of the “principle of complementarity principle” alone, we are confident that the OTP will not proceed with an investigation.
Q: Will the OTP take into account the fact that the “communications” it received came from the political opposition who are critical of the administration?
A: We expect the OTP, and the ICC for that matter, to be fair and objective, and that they will resist attempts by some sectors to treat the Court as a venue to pursue political agenda to destabilize governments and undermine legitimate national authorities. We are confident that the OTP will live up to its avowed policy that “political considerations never form part of the Office's decision making,”[1] and thus it will see through the political motivations behind the “communications” it has received.
Q: Is there a timeframe for the OTP to conclude its preliminary examination?
A: There is no timeframe provided in the Rome Statute for bringing a preliminary examination to a close. Depending on the facts and circumstances of each situation, the OTP may decide either to: (i) decline to initiate an investigation where the information fails to satisfy the factors set out in Article 53(1)(a)-(c); (ii) continue to collect information on crimes and relevant national proceedings in order to establish a sufficient factual and legal basis to render a determination; or (iii) initiate the investigation, subject to judicial authorization as appropriate.
Based on previous cases, a preliminary examination can take up to 10 years, depending on the nature and circumstances of the case.
Q: Can the OTP, merely on the basis of its findings in the preliminary examination, immediately proceed to an investigation?
A: For the OTP to proceed to the investigation phase, it needs to secure authorization from the Pre-Trial Chamber of the International Criminal Court.
Q: Are there ongoing preliminary examinations by the OTP?
A: 22 States have undergone or are currently undergoing preliminary examination. Situations in 10 States have since been referred for investigation: Democratic Republic of the Congo, Uganda, Sudan, Central African Republic I, Kenya, Libya, Cote d’Ivoire, Mali, Central African Republic II, Georgia, and Burundi. 8 States are still undergoing preliminary examinations: Afghanistan, Colombia, Gabon, Guinea, Iraq/UK, Nigeria, Palestine II, Ukraine. 5 Preliminary Examinations have not proceeded to an investigation: Honduras, Comoros, Republic of Korea, Palestine I, Venezuela.
[1] Office of the Prosecutor, https://www.icc-cpi.int/about/otp